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The Constitution

The Constitution is one of the most misused and abused documents in American history. It essentially does three things:

1) It establishes and organizes the federal government2) It lists the delegated powers permissible for federal use3) It lists a few of the more stringent restrictions on federal power. The Declaration of Independence, which predates the Constitution, establishes that all men have numerous unalienable (i.e. cannot be curtailed) rights by virtue of being human. These rights are bestowed upon all men without the need for governmental decree or permission. In addition, the Declaration made specific note of the equal applicability of law. Common Law and Rule of Law were very strong influences in the founding generation and were thought of as legitimate as written law.

Common Law is the formation of law through court cases. However, unlike as is prevalent today, this does not mean judicial activism. As the name implies, common law is the common interpretation and adherence to law. For most of our history jury nullification has helped to prevent (or overturn) the government from issuing immoral or abusive laws. A jury has the power to declare a defendant not guilty despite being in violation of law. The act of declaring not guilty has the effect of repealing – or nullifying – the rogue law in question.

Rule of Law was the idea that no individual or organization is above the law. As mentioned, the Declaration of Independence specifically charges that the King considered himself above the law but the Rule of Law forbids this. There are many instances of governmental abuses in this arena today.

Getting back to the matter at hand, the first function of the Constitution was to create and organize a new central government. The various States had declared sovereignty in 1776 and it was discovered that the Articles of Confederation were not quite powerful enough to maintain cohesion among them. It was worried that without a stronger central government the various States would turn on each other and become protectorates of other nations, rendering the efforts of the Revolutionary War useless.

So, thirteen years after the American people declared their independence the Constitution was enacted and the United States of America was created. Article I describes the legislature, Article II explains the executive and Article III establishes the judiciary. The remaining articles simply describe the nature of certain relationships and events. In any event, as I pointed out in #1 above, the Constitution establishes and organizes the federal government.

Exploring deeper into the first three articles and clause two of Article VI (supremacy clause) we discover the powers delegated to the new government by the States and ultimately the people (point #2). Article I starts off with “All legislative Powers herein granted” (emphasis added). Section 8, appropriately entitled “Powers of Congress,” lists eighteen specific powers which are delegated to federal purview. Article II Section 2 lists the very limited powers of the executive (to get an idea of how greatly these powers have morphed throughout our history check out Cult of the Presidency). And the judicial powers are annotated throughout Article III in its entirety.

Before we continue with the last point I must emphasize a few points. The Constitution established the new central government after the dissolution of the Confederacy. It should be thought of as a restriction to the federal government from impeding upon preexisting rights rather than a list of rights for citizens. Admittedly, the Bill of Rights was included later in order to garner the proper amount of support so it would be adopted by the States but the amendments do not change the character or intent of the Constitution itself. The Bill of Rights was intended as a further restriction upon government by specifically listing certain areas where no amount of infringement would be allowed. Obviously even the Bill of Rights was not able to keep the feds at bay.

Returning to point #3, the final aspect of the Constitution is a limitation on Federal powers. Article I Section 9 makes specific restrictions on which types of laws Congress may pass. The Bill of Rights, as mentioned earlier, was meant to further solidify the very narrow authority of Congress as well as acting as a final guard to certain freedoms should the government usurp unauthorized powers. Again, the Constitution as a whole was designed to restrict the central government to very specific areas. Unfortunately, a single clause has caused more loss of freedom than any other attempt at power by our government.

Article I Section 8 enumerates the powers of Congress. The very first power listed is the “Power To lay and collect Taxes, Duties, Imposts and Excises.” However, this power is not all inclusive. The Congress can only create an above mentioned tax in order “to pay the Debts and provide for the common Defence and general Welfare of the United States.” In other words, they cannot create a tax to fund a Congressional vacation because it does not satisfy one of the three requirements above.

The general welfare clause was never intended to allow Congress to tax for any purpose whatsoever that would simply promote the general welfare. James Madison was very involved in this matter. According to Madison, “the meaning of the general terms in question must either be sought in the subsequent enumeration which limits and details them, or they convert the Government from one limited, as hitherto supposed, into a Government without any limits at all.” And in a letter to Henry Lee he very unequivocally said, “If not only the means, but the objects are unlimited, the parchment [Constitution] had better be thrown into the fire at once.” It was not until the Supreme Court reinterpreted this clause in U.S. v. Butler in 1936 with the New Deal that the federal government was given free rein in all aspects of our lives via the general welfare clause.

Excerpt from Federalist 84: “The only use of the declaration was to recognize the ancient law and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself. … I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”